Feb 25 2015 Food Webinar Powerpoint Presentation(1) · ADA – alcoholism may be disability, depression likely is – but “focused” tasks are likely essential function, reasonable

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©2015 Foley & Lardner LLP • Attorney Advertising • Prior results do not guarantee a similar outcome • Models used are not clients but may be representative of clients • 321 N. Clark Street, Suite 2800, Chicago, IL 60654 • 312.832.4500

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©2013 Foley & Lardner LLP

Presenters

Michael D. Flanagan (Moderator)Foley & Lardner LLPPartnerFood & Beverage Industry [email protected]

Bernard (Bud) J. BobberFoley & Lardner [email protected]

Dabney D. WareFoley & Lardner LLPOf [email protected]

Ryan N. ParsonsFoley & Lardner [email protected]

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Bernard (Bud) J. BobberFoley & Lardner LLP

[email protected]

Wage and Hour Issues


Wage/Hour Issues

Why care? Wage claims still increasing

– In 2014, FLSA case filings up 2.5%

8077, from 7,874 in 2013

– In 2013, FLSA case filings up 11.7%

– Plus, state law wage claims

Traditional class action procedures in state court

– Not just economics, but social justice

FLSA damages

– Back pay; from 3 years before case filing

– Doubled (liquidated damages)

– Attorneys’ Fees (plaintiffs’ and defense)

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Wage/Hour Issues

Example: Claim of off-the-clock work 10 mins/shift (shift hand off)

50 employees

Avg. of 47 workweeks/year; 40 hrs/week

Avg. pay of $16/hr.

– Back pay = $141,000 3 yrs. X 50 ees x 47 wks.yr. x 50 mins/wk x 1hr/60mins x

$16/hr. x 1.5 (OT pay)

– Liquidated damages = $141,000

– Attorney fees (plaintiffs + defense) = $300,000

– Experts/consultants = $50,000

Total = $491,000

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Common FLSA Claims

Off-the-Clock work Typically a claim for overtime

Now called “wage theft” by plaintiffs

Missed meal/rest breaks Mainly a state law issue

FLSA unpaid meal should be at least 30 mins.

Beware automatic meal deductions

Misclassification of exempt status Lead workers; QA personnel; Customer Serv. Reps.

Newer trends: unpaid interns; independent contractors

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Food Manufacturers

The big one for Food Manufacturers:

DONNING and DOFFING

D&D: claim for pay for time spent putting onclothes and gear on front of shift (donning),and removing it at the end of shift (doffing)

– Ropes in walking time

IBP v. Alvarez (US Sup. Ct. 2005): “continuousworkday”

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Donning and Doffing

Guiding principles:

“Work”

– Must paid for all hours “worked”

Activities “integral and indispensable” part ofprincipal activities

Minimal effort does not matter– De Asencio v. Tyson Foods (3rd Cir. 2003)

Minimal time may not matter– Sandifer v. US Steel (US Sup. Ct., 2014)

“De minimis” doctrine unclear

– SCOTUS ruled waiting time in post-shiftsecurity screening not compensable “work”

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Donning and Doffing

Views of the developing landscape:

Requirement of changing at the worksite isstill key

– Balance food safety v. wage liability

If primarily for benefit of employer, probablycompensable as “integral andindispensable”

– But new arguments from Integrity StaffSolutions v. Busk case will be developed

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Donning and Doffing Tips

Make clear what is mandatory v. optional

Minimize what must be done at work site

– Ex) Depart in uniform to minimize doffing?

Consider replacing pant and shirt withsmocks

– Retrieve from rack on way into produciton area

Consider replacing captive shoe with steel-toed covers (slipped on quickly)

Prohibit early pre-shift changing

Consider making this on paid time

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Donning and Doffing Tips

Extra tool in unionized workplaces

– FLSA 203(o) CBA exemption

– Supreme Court ruled “clothes changing”includes PPE (hairnet, safety glasses, hearingprotection, bump cap, etc.)

Beware – Unionized employees sue anyway but under state law

– Theory rejected in IL and MO, but traction in WI

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Dabney D. WareFoley & Lardner LLP

Of [email protected]

Employee Concerns with FMLA or ADA

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Beginning Thoughts – what may be in play . . .

Federal Laws (and possible state equivalents)– Family and Medical Leave (or state version)

– Americans with Disabilities

Company or Local Issues (too individualized to be big partof today’s discussion, but can’t be forgotten)– Company policies (attendance, sick, etc.)

– Company benefits (PTO, STD, etc.)

– Collective bargaining agreement

– Workers Compensation

– Other mandated benefits (required sick leave) or applicable legalrequirements

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General Considerations

Consistency vs. need for individual analysis

Your common sense won’t trump opinion of medical provider (but may bebasis for second opinion)

You are expected to use your common sense, unless it appears to bestereotyping or paternalistic

What’s best option to minimize legal risk but achieve business objective

Differing policy goals

FMLA - protect employee’s right to be away from work

ADA - helps employee stay at work (requires reasonableaccommodation unless undue hardship)

Worker’s Compensation - provides automatic compensation for on the jobinjuries and reflects public policy trade-off of automatic, but limited liability

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What If . . .

In walking production area, you observe lineemployee coughing (a lot)?

Options –

– Ask/confirm status

– Send home (paid or unpaid per policy)

– Alert HR to possible need for leave

– Require FFD for Return to Work

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Would it Make A Difference If . . .

Facility/community is in midst of fluoutbreak?

Employee was out last week to take care ofsick child (has now exhausted their paidleave)?

Employee says has emphysema?

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What if Employee Says

Coughing is due to environmental issue?

Is it ADA issue? (temporary illness or chronic condition)

– Can seek medical confirmation of condition orlimitations

Assume it is covered disability?

– Often makes sense if reasonable accommodation isrelatively easy

– In other cases, will want to know more – such as causeof irritation

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Medical Certification

ADA - Only medical inquiries or examinations regardingemployee’s disability that are job-related and to determineability to perform job and whether accommodation isneeded and effective, but can request documentation tosupport requested accommodation

FMLA - Employer can request medical certification to determinewhether employee has a “serious health condition”

Employers can normally request recertification every 30days for chronic or long-term conditions, or, in other cases,once the initial certification expires

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What if this happens . . .

Employee, responsible for mixing ingredients, indicates she is feeling faint,thinks it is related to pregnancy, and she needs to go home

Options – Similar to before –

– Ask/confirm status, send home (paid or unpaid per policy),

– alert HR to possible need for leave,

– require FFD for Return to Work

– BUT – need to be more cautious – avoid being paternalistic

What IF – employee actually passes out while on production floor, says shemight be pregnant

– Treat in similar manner as you would any employee who passed out (regardless of underlyingcause)

– For diabetic employee, likely a reasonable accommodation to allow breaks for snacks asneeded to help adjust insulin levels – but if incidents are too frequent or too severe, may not be

qualified individual protected by act – which is risky route, possibly necessary

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New Pregnancy Guidance

Guidance on Pregnancy Discrimination Issued July 2014(EEOC has filed over 50 pregnancy discrimination suitssince 2011)– EEOC says that employers must make reasonable accommodations for female

employees who are attempting to get pregnant, are pregnant or are breastfeeding

– Pregnancy and pregnancy-related impairments can be qualifying disabilities underthe ADA

– Reasonable accommodation obligation applies to even routine pregnancy

– Also reiterates non-discrimination obligations under the Pregnancy DiscriminationAct, FMLA, and ADA

– Says that employer cannot restrict light-duty positions to on-the-job injuries or ADA-covered disabilities

– U.S. Supreme Court to decide Young v. UPS addressing this very issue

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Pregnancy-Related Accommodations

Guidance describes the following reasonable accommodations forpregnancy-related impairments (essentially similar to what might occurunder ADA):

– Redistributing marginal functions that the employee cannotperform

– Modifying how job functions are performed

– Modifying workplace policies

– Purchasing or modifying equipment or devices

– Modifying work schedules

– Granting leave

– Temporary assignment to light duty position

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Reassignment/Light Duty

FMLA

Cannot force employee to accept light duty

During a planned FMLA Intermittent or Reduced ScheduleLeave, employer can temporarily reassign the employee to a jobwith the same pay and benefits

WC

Limit light duty for WC injuriesRefusal of offered work will often result in loss of employee’swage loss benefitsLimited duration – must be temporary job or will also berequired to provide for non-occupational ADA

ADA

Not generally required to create position – fact specific

May provide on temporary basis without creating obligation tocontinue (but be specific about temporary nature at outset).

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What if you Notice . . .

Employee is having recent difficulty with focus (nottracking ingredients properly, failing to monitor / properlyrecord process). At meeting with supervisor, employeesays she has a drinking problem and is being treated fordepression.

FMLA – may be leave eligible for treatment

ADA – alcoholism may be disability, depression likelyis – but “focused” tasks are likely essential function,reasonable accommodation could be leave for treatmentor reassignment

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What Changes if . . .

What if employee says she wants to keep working, but hercurrent job is too stressful (which is creating anxiety and,in turn, focus problems)?– FMLA and ADA still in play

– But, want to clarify what she may be needing to address issues – leave fortreatment (FMLA) or reassignment

– Depending on nature or severity of prior issues, may want follow upregarding ability to work in current job

What if there was good documentation of prior problems,supervisor plans meeting to terminate employment, butbefore being terminated, employee requests leave?

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What If . . .

Employee says he has a severe seafood allergy, so hecannot work when a certain product is made (even thoughproduction is limited to portion of facility). He submits anote from his doctor confirming the allergy, and requestingto work limited times.

Do we need to modify his assignments or schedule?What are the WC issues? FMLA issues? ADA issues?

How does it change if allergy is less severe, so can workat anytime, allergy merely affects which portion of facility?

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Some FMLA take aways

Can receive additional medical opinion(s) - atcompany expense, follow protocol

During the leave entitlement, an employee isentitled to reinstatement to his former position, ora position with equivalent pay, benefits, andduties

Very strict standard of “equivalent”

At the end of leave, job reinstatement rights cease(but still need to consider ADA)

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Some ADA take aways

Generally, employee must inform you an accommodation is needed (unlessobvious), but not required to use “magic language”

Can request documentation of the disability and/or limitations (unless obvious)– if employee refuses, they are not entitled to accommodation

If more that one reasonable accommodation will work, you can choose what iseasiest for company

Reassignment to vacant position may be reasonable accommodation ifqualified (if same or lower level, not acceptable to fill with someoneconsidered more qualified) – can require employee to “compete” for promotion

Position is considered vacant if you know there will be opening within shortperiod of time (EEOC figures employer may likely know of future vacancies,and future openings will count if timing is right)

Bumping is not required

Changing someone’s supervisor is not a reasonable accommodation

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Some more ADA take aways

Can move person to part time position as accommodation (different thanFMLA)

ADA does not require lowering production standards as a reasonableaccommodation

If leave is provided, general rule is that it is job protected – if it’s not, be clear(and careful about circumstances)

Modified schedules may be reasonable accommodation, but likely an unduehardship if does not fit in with production schedule

Medication monitoring is not a reasonable accommodation

Once leave has extended for long enough (several cases say one year is agood rule of thumb) employee is no longer “otherwise qualified” for the job andso is not protected under the ADA, but EEOC expects to see individualanalysis rather than black and white application of rule

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Even more ADA take aways

Not required to provide accommodation if undue hardship –– Undue hardship is not judged solely on financial difficulty, EEOC guidance relies

on whether the accommodation is “unduly extensive, substantial, disruptive” orwould “fundamentally alter the nature of or operation of the business”

– Help yourself by documenting interactive process - what was considered, why is itnot an option

– Undue hardship determined by “net cost” to employer and EEOC guidanceindicates you must take into account items such as tax credits, or if deemed to bean undue hardship, have option to request employee pay portion

– Creating a morale problem for other employees is not an undue hardship, whilebeing disruptive to ability of others to work may be an undue hardship

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Labor Law Issues for Food Manufacturers

Ryan N. ParsonsFoley & Lardner LLP

[email protected]

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Union Avoidance

Background

– Union Membership Falling

Down to 11% of all employees (1983 = 20%)

Just 7% of private sector employees

– NLRB As Union Advocate

Quickie Elections

Approval of Microunits

Invalidation of Employer Policies (even in non-unionworkplaces)

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Microunits

In food manufacturing facilities, the most common(and presumptively appropriate) bargaining unit wasall “production and maintenance” employees– For a union to represent such a unit, they need to gain

the consent of the majority of employees

Modern shift to smaller units– Unions having trouble organizing large-scale, plant-

wide units

– Seeking to organize nooks and crannies of workplace(departments, specific jobs, etc.)

– Potential footholds for union to then organize otherareas of plant

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Microunits

NLRB has Blessed this microunit approach

– As long as the employees in the proposed unitdo not share an “overwhelming community ofinterest” with employees outside the unit, theunit will be considered appropriate

– Specialty Healthcare & Rehab Ctr., 357 NLRBNo. 83 (2011)

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How Can Food ManufacturersAvoid Microunits?

Review your org charts– “Separate supervision” is a key factor in allowing

microunits– Show common supervision at lowest levels possible

Create uniform policies– Scrutinize policies that apply only to certain

departments or jobs

Consider programs that allow employees to movefrom one department to another (e.g., training forproduction employees to allow them to becomemaintenance employees)

Allow employees to cover for one another acrossdepartments

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NLRB in Non-Union Workplaces

An employee’s rights under the National LaborRelations Act are the same whether the employee isa member of a union or not.– “Employees shall have the right to self-organization, to

form, join, or assist labor organizations, to bargaincollectively through representatives of their ownchoosing, and to engage in other concerted activitiesfor the purpose of collective bargaining or other mutualaid or protection, and shall also have the right to refrainfrom any or all of such activities.”

The NLRB has increasingly focused its attention onnon-union workplaces and invalidated policies thatcould be read to “chill” employee rights

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NLRB in Non-Union Workplaces

The Board has expanded its role intobecoming a referee of policies of generalapplication that have nothing to do withunion activity on their face

Policies that could be construed to have atendency to “chill” union activity may beruled unlawful, even if they do not expresslyaddress union activity

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Employer Policies Subject to Attack

Social Media and Non-disparagementPolicies

– Food manufacturers have an especially stronginterest in preserving their reputation in themarketplace

– But employees have the right to complain abouttheir wages, hours, and terms and conditions ofemployment, even on social media, wherecomplaints can be seen by anyone across theworld

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Social Media and Non-disparagement Policies

– Consider adding specific language to policy (orgenerally in an employee handbook): “This policy(or “this handbook”) is not intended to and shall notbe interpreted in such a way as to interfere with theexercise of an employee’s rights under the NationalLabor Relations Act.”

– This “safe harbor” language will make it more likelythat your policy will be upheld as lawful (and thatan employee who is fired for blabbing or lyingabout the company will stay fired).

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Off-Duty Employee Access Policies

– Food manufacturers have a strong interest incurtailing access to the plant for food safetyand security reasons

– These policies can be lawful under certaincircumstances, but the Board will inspect themclosely

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Off-Duty Employee Access Policies– Must apply to all off-duty access, not just to

employees accessing plant to organize; exceptionswill undermine policy

– Must be consistently enforced against allemployees; lax enforcement is a killer

– Must be clearly disseminated to all employees longbefore employer becomes aware of any organizingcampaign

– Must apply only to interior of the facility (or exteriorworking areas); cannot limit access to parking lot orto other exterior non-working areas

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Q&A SessionIf you have a question, please submit it through the Q&A

window on your screen.

Documents

Feb 25 2015 Food Webinar Powerpoint Presentation(1) · ADA – alcoholism may be disability, depression likely is – but “focused” tasks are likely essential function, reasonable